Term. of the Parent-Child Rel.of: M.M. (Minor Child), and S.H. (Mother) v. The Indiana Dept. of Child Services ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Nov 29 2012, 8:51 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
of the supreme court,
court of appeals and
estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELDEN E. STOOPS, JR. TODD A. WHITEHURST
Law Offices of Elden E. Stoops, Jr., P.C. DCS Local Office in Wabash County
North Manchester, Indiana Wabash, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF: )
M.M. (Minor Child), )
)
and )
)
S.H. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 85A02-1204-JT-323
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
)
APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen III, Judge
Cause No. 85C01-1106-JT-15
November 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
S.H. (“Mother”) appeals the involuntary termination of her parental rights to her
child, M.M. Concluding that the Indiana Department of Child Services, local office in
Wabash County (“WCDCS”), presented clear and convincing evidence to support the
trial court’s judgment, we affirm.
Facts and Procedural History
Mother is the biological mother of M.M., born in January 2001. M.M.’s
biological father, B.M., is deceased. The facts most favorable to the trial court’s
judgment reveal that sometime following the death of M.M.’s father, Mother married and
began living with T.M. (“Stepfather”), along with M.M. and M.M.’s two older siblings.
In November 2009, the local Wabash County office of the Indiana Department of Child
Services (“WCDCS”) received a report that M.M. had stated during a “safety-body
program” at school that Stepfather had been molesting her for the past several years.
Appellee’s App. p. 1. That same day, a WCDCS caseworker accompanied local police
personnel, Mother, and M.M. to the Child Advocacy Center in Marion, Indiana, where
M.M. was interviewed. During the interview, M.M. told detectives that Stepfather had
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molested her “orally, vaginally, and in the anus on and off for the past 4 years” since
M.M. was “three or four” years old. Id. at 2.1
Following the interview with M.M., WCDCS took the child into emergency
protective custody and filed a petition alleging M.M. was a child in need of services
(“CHINS”).2 A fact-finding hearing on the CHINS petition was eventually held in May
2010, and M.M. was so adjudicated.3 Later the same month, the trial court issued a
dispositional order formally removing M.M. from Mother’s care and custody and making
the child a ward of WCDCS. The court’s dispositional order further directed Mother to
successfully complete several tasks and services designed to facilitate reunification with
M.M., including individual and family counseling, home-based case management
services, and supervised visitation with M.M.
Mother’s participation in court-ordered services during the ensuing months was
unsuccessful. Although Mother participated in supervised visits with M.M., Mother
never progressed to unsupervised visits. Mother also did not successfully complete
home-based services or individual and family counseling. In addition, Mother steadfastly
refused to believe M.M.’s allegations against Stepfather.
1
Stepfather was charged with two counts of child molesting as Class A and Class C felonies in
January 2010. The State ultimately moved to dismiss the charges against Stepfather, without prejudice.
The motion to dismiss was granted in December 2010.
2
It was determined that M.M.’s older brothers would be allowed to remain in the home as there
were no allegations of molestation involving the boys. Additionally, the boys were interviewed at their
high school the following day and reported that Stepfather had “never touched them or tried to touch
them.” Appellee’s App. p. 2.
3
Mother appealed the trial court’s CHINS determination, but the matter was affirmed in
December 2010 by another panel of this Court in a Memorandum Decision. See In re M.M., No. 85A02-
1006-JC-776 (Ind. Ct. App. Dec. 29, 2010).
3
In March 2011, WCDCS filed its first petition seeking the involuntary termination
of Mother’s parental rights to M.M. due to her lack of progress in services. WCDCS later
moved to dismiss the petition in May 2011 after Stepfather moved out of the family home
and filed for divorce. During this time, Mother attended a family counseling session with
M.M. and licensed social worker Ed Pereira. For the first time since the child’s removal
from her care, Mother listened to M.M. recount the details of her abuse and
acknowledged, in the presence of Pereira, that she believed M.M. had been abused by
Stepfather. Mother also verbalized that she wanted to reunite with M.M.
Within one month, however, Mother reunited with Stepfather and denied having
ever believed or acknowledged M.M.’s stories of abuse. Mother’s participation in home-
based services and individual counseling also began to wane. Consequently, in late-June
2011, WCDCS filed a new petition seeking the involuntary termination of Mother’s
parental rights to M.M.
An evidentiary hearing on the termination petition was held in March 2012.
During the termination hearing, WCDCS presented significant evidence establishing that
Mother remained incapable of providing M.M. with a safe and stable home environment.
WCDCS also introduced evidence showing Mother had failed to successfully complete
home-based services as well as individual and family counseling and never progressed
past supervised visits with M.M. Mother also continued to deny that she had ever
believed or acknowledged M.M.’s allegations of abuse by Stepfather.
4
At the conclusion of the termination hearing, the trial court took the matter under
advisement. The next day, the trial court entered its judgment terminating Mother’s
parental rights to M.M. Mother now appeals.
Discussion and Decision
When reviewing termination-of-parental-rights cases, we neither reweigh the
evidence nor judge witness credibility. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Instead, we consider only the evidence and reasonable inferences
most favorable to the judgment. Id. Moreover, in deference to the trial court’s unique
position to assess the evidence, we will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied.
Here, in terminating Mother’s parental rights, the trial court entered specific
findings and conclusions. When a trial court’s judgment contains specific findings of fact
and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. L.S., 717 N.E.2d at 208.
The “traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
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666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. These parental interests, however,
are not absolute and must be subordinated to the child’s interests when determining the
proper disposition of a petition to terminate parental rights. Id. In addition, although the
right to raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is unable or
unwilling to meet his or her parental responsibilities. K.S., 750 N.E.2d at 836.
Before an involuntary termination of parental rights may occur in Indiana, the
State is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the
well-being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2).4 “The State’s burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial court finds that the
4
We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July
1, 2012). The changes to the statute became effective after the filing of the termination petition involved
herein and are not applicable to this case.
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allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). Mother only
challenges the sufficiency of the evidence supporting the trial court’s conclusions as to
subsections (b)(2)(B) of the termination statute cited above. See I.C. § 31-35-2-4(b)(2).
Mother complains that the evidence presented during the termination hearing
establishes that WCDCS required Mother to acknowledge M.M.’s allegations of abuse by
Stepfather to be true before reunification of the family was possible. Mother therefore
contends she was “doomed to legal failure because of the precondition of belief in
something that she so clearly found to be unbelievable.” Appellant’s Br. p. 7. Mother
therefore claims she is entitled to reversal.
Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) requires a trial
court to find that only one of the three elements of subsection (b)(2)(B) has been
established by clear and convincing evidence before properly terminating parental rights.
See L.S., 717 N.E.2d at 209. Here, the trial court determined that subsection (b)(2)(B)(i)
was established by clear and convincing evidence, namely, that there is a reasonable
probability the conditions leading to M.M.’s removal would likely not be remedied. In
making such a determination, a trial court must judge a parent’s fitness to care for his or
her child at the time of the termination hearing, taking into consideration evidence of
changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.
The trial court must also “evaluate the parent’s habitual patterns of conduct to determine
the probability of future neglect or deprivation of the child.” Id.7
Pursuant to this rule, courts have properly considered evidence of a parent’s prior
criminal history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. Moreover, a
county department of child services is not required to provide evidence ruling out all
possibilities of change; rather, it need only establish that there is a reasonable probability
the parent’s behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). Finally, we have previously explained that Indiana’s termination statute makes
clear that “it is not just the basis for the initial removal of the child that may be
considered for purposes of determining whether a parent’s rights should be terminated,
but also those bases resulting in the continued placement outside of the home.” In re A.I.,
825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
Here, the trial court made several pertinent findings regarding Mother’s failure to
benefit from reunification services and her continuing inability to provide M.M. with a
safe and stable home environment. Specifically, the trial court found that although
Mother had been “compliant with the supervised parenting,” Mother had “not been fully
compliant with home[-]based services and individual/family counseling” and her
“participation in counseling fell off significantly following the filing of this second
petition to terminate her parental rights.” Appellant’s App. p. 43. The court also found
that Mother had “steadfastly denied” M.M.’s allegations against Stepfather, other than for
a “brief period in March 2011,” and “now denies” that she ever told M.M. she believed
her during the underlying proceedings. Id.8
There was conflicting testimony concerning whether a safety plan was ever
presented as a means to achieve reunification despite Mother’s ongoing relationship with
Stepfather and refusal to believe M.M. However, the trial court specifically found that it
believed Mother “clearly understood that, despite her denial that the molestation
occurred, if reunification were to occur, [Stepfather] would not be allowed to have
contact with the child.” Id. at 44. The court further observed:
[W]hether or not a specific safety plan (in which [Stepfather] was
effectively out of the picture) was developed, is no defense to Mother. The
first petition to terminate her parental rights was dismissed after she and
[Stepfather] separated, a petition to dissolve their marriage was filed[,] and
she told [WCDCS] she would seek a protective order against [Stepfather].
The Court does not believe Mother would have done anything other than
what she has done (i.e. place her relationship with [Stepfather] above that
with her child) even if a specific case plan to the contrary was in effect.
Requiring a specific plan to be developed which would require Mother to
do what, by her own actions, she has shown she is not willing to do, would
have been useless. Ed Pereira’s own concerns about Mother’s credibility
following her failure to divulge to him when she reunited with [Stepfather]
support this conclusion as well.
Id. at 44-45. Based on these and other findings, the trial court concluded that there is a
reasonable probability the conditions resulting in M.M.’s removal and continued
placement outside Mother’s care will not be remedied. A thorough review of the record
reveals that these findings are supported by abundant evidence.
Testimony from WCDCS case managers and service providers makes clear that, at
the time of the termination hearing, Mother’s circumstances and ability to provide M.M.
with a safe home environment remained unchanged. Since the time of M.M.’s removal,
Mother failed to successfully complete virtually all of the court-ordered reunification
services, including individual therapy, family therapy, and home-based services. In
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recommending termination of Mother’s parental rights, WCDCS case manager Natalie
Presley testified during the termination hearing that although Mother was very consistent
in visiting with M.M., the level of interaction between Mother and M.M. during visits
remained at a “very surface level.” Tr. p. 8. Home-based counselor Steve Hatland
likewise confirmed that Mother never progressed past supervised visits with M.M during
the two years the family was provided services. Mother, too, acknowledged during the
termination hearing that her communications with M.M. had remained superficial.
Presley and Hatland also both confirmed that Mother’s participation in home-
based services became “sporadic” in July 2011 when Mother began “cancelling” and “no-
showing [for] appointments” and that Mother’s last home-based counseling session was
in September 2011. Id. at 8, 25. As for individual counseling, Presley reported that
Mother stopped attending sessions in April 2011, then “started again . . . a couple of
months later” but her attendance was “very inconsistent.” Id. at 9. Presley went on to
explain that Mother had indicated she only returned to counseling “because her attorney
told her to.” Id. Similarly, Pereira confirmed that Mother’s participation in individual
counseling sessions became less frequent following the filing of the second termination
petition, and by June 2011 Mother had “stopped being cooperative.” Id. at 43. When
asked why Mother stopped participating in individual counseling and home-based
services, Mother answered, “I don’t have a good reason for you.” Id. at 105.
Finally, it was the general consensus of Presley, Pereira, M.M.’s therapist Deb
Williams, and Court Appointed Special Advocate Joy Curless that Mother’s ongoing
relationship with Stepfather and refusal to believe that M.M. had been molested by
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Stepfather posed a danger to the child’s safety. Nevertheless, testimony from several
witnesses, including Presley and Pereira, confirmed that with “appropriate diligence, and
continued counseling,” along with a safety plan that prohibited contact between
Stepfather and M.M., reunification remained possible, but that Mother had refused to
complete counseling. Id. at 60.
As previously explained, a trial court must judge a parent’s fitness to care for his
or her child at the time of the termination hearing. Where a parent’s “pattern of conduct
shows no overall progress, the court might reasonably find that under the circumstances,
the problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.
App. 2005). Based on the foregoing, we conclude that WCDCS presented clear and
convincing evidence to support the trial court’s findings cited above, including its
determination that there is a reasonable probability the conditions resulting in M.M.’s
removal and continued placement outside Mother’s care will not be remedied. These
findings, in turn, support the court’s ultimate decision to terminate Mother’s parental
rights to M.M. Mother’s arguments to the contrary, including her complaints that
WCDCS failed to adopt a formal safety plan due to Mother’s refusal to acknowledge the
abuse suffered by M.M., amount to an impermissible invitation to reweigh the evidence.
See D.D., 804 N.E.2d at 264.
This Court will reverse a termination of parental rights “only upon a showing of
‘clear error’– that which leaves us with a definite and firm conviction that a mistake has
been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v.
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Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no
such error here.
Affirmed.
MATHIAS, J., and BARNES, J., concur.
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